Court of Appeal Rules Private Communications Sent to and from Personal Electronic Devices Are Not Subject to Public Records Act

April 4, 2014

The California Court of Appeal issued its ruling in City of San Jose v. Superior Court (Smith) on March 27, reversing a 2013 decision by the Santa Clara County Superior Court that ordered the city to provide electronic communications concerning a development project sent from or received on officials’ private personal electronic devices.

In brief, the Court held that voice mails, emails and texts about public matters that were sent from or to a public official’s private email on their personal electronic device are not public records.

Background

The case stems from a 2009 Public Records Act request to the city of San Jose to turn over public records related to a city development project. The request covered a number of items including communications sent to the mayor and council members’ personal electronic devices. The city denied this part of the Public Records Act request. Smith, the requesting party, then went to the Santa Clara County Superior Court to obtain an order under the California Public Records Act to compel the city to disclose these communications. The mayor and council members in 2013 were ordered by the Superior Court to supply the private messages. The city appealed.

Court of Appeal Ruling

The court of appeal framed the question on appeal as: whether those private communications, which are not stored on the city’s servers and are not directly accessible by the city, are nonetheless, “public records” within the meaning of the Public Records Act. The court concluded that the Act does not require public access to communications between public officials using exclusively private personal electronic devices or email accounts.

The League has been and remains a strong supporter of transparency and the disclosure of public records as required by the California Constitution and statutes. Records maintained by public agencies are the public’s business. In this case, the League argued in an amicus (friend of the court) brief and strongly agrees with the court, that state law does not reach private communications by city employees and officials on their personal electronic devices.

The California Public Records Act and the U.S. and state constitutions reflect a careful balance between the right of public access to public information and other important public objectives and private rights (e.g., privacy, etc.) Americans enjoy as citizens. This balance is further reflected in the 4th Amendment to the U.S. Constitution, which also protects people from illegal search and seizure. State laws and public agencies may not conflict with this basic constitutional right.

This balance also reflects the significant administrative challenges public agencies would face if state law required them to produce private communications of employees and officials that exist only on private communication devices outside of the agencies’ control.

The League wishes to thank Shawn Hagerty and Hong Dao Nguyen of Best Best & Krieger for drafting the League’s amicus brief in this case.